Legal source
The Enduring power of attorney (EPOA) was introduced by law n°1474 of 2 July 2019.
It is a protection system of a conventional nature allowing any person to designate, in advance, by POA, one or more persons to represent them or to ensure the protection of their personal or property interests in the event that an alteration of their mental or physical faculties renders them incapable of looking after their own interests1.
The establishment of an EPOA meets the need to take into account the will of the protected person. This consideration has undeniable advantages in that it allows the protected person to feel confident with their attorney(s) and thus ensures greater support from the protected adult for the decisions taken by the attorney and full cooperation from the principal in the latter's mission.
Effective date: prior judicial approval
The EPOA only takes effect after being homologated by the Court of First Instance, after the filing of a petition from the attorney designated in the act2.
This petition for homologation is subject to proof of the death or incapacity of the principal.
The Court approves the EPOA, taking into account the suitability of its content to the personal and financial situation of the beneficiary and their interests.
If the Court considers that the EPOA is insufficiently protective of the beneficiary's personal and property interests, it may :
- Homologate it and, in addition, add to it a complementary guardianship or tutorship entrusted, if necessary, to the attorney designated in the act,
- Approve it partially in order to implement only the measures necessary for the protection of the beneficiary,
- Refuse the homologation and, if necessary, pronounce the opening of a guardianship or tutorship.
If the Court considers that the EPOA is sufficiently protective of the beneficiary's interests, it will homologate it in all its provisions.
Case study
The CMS Law Firm has recently assisted one of its clients in the context of a partial homologation of the EPOA concluded by the adult himself in the event of an alteration of his mental faculties.
The Monegasque judges considered that the partial implementation of the EPOA sufficiently preserved the interests - financial in this case - of the adult and it was therefore necessary to authorise the partial homologation of the said EPOA and to appoint the attorney named in the act to execute it.
This is the first Monegasque case law handed down in this area since the promulgation of the law.
Footnotes
1 Article 410-37 du Code civil
2 Article 410-42 du Code civil
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.